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Employee on sick leave travels to Barbados – but the investigating employer stepped over data protection guidelines.

The police service has a rule in its attendance policy – if you’re off sick, you must remain contactable and notify your manager if you’re planning on travelling anywhere. Ms Brown was off sick, and did travel to Barbados, why then did her employer have to pay her £9K in damages as a result of their investigations? To learn more about some of the dos and don’ts when it comes to employee data, please click here to read the article.

In the Brown v Commissioner of Police for Metropolis case it came to the Met’s attention that its employee, Ms Brown, may have travelled to Barbados on holiday whilst on sick leave without informing her manager. The Met believed that this would be a breach of its sickness procedures and began an investigation under the Disciplinary Policy. As part of this investigation they contacted the airline and the National Border Targeting Centre to ask whether their suspicions were true. In doing so they disclosed personal information relating to Ms Brown without her express consent.

Ms Brown found out and brought a claim under the Data Protection Act in the County Court. She was awarded £9K in damages for a breach of privacy and distress caused by the misuse of personal data, even though in the event the employer decided not to use that evidence. Had it done so (and had she been dismissed on the back of it) the damages could have been significantly higher.

So how far can an employer go to obtain evidence of an employee’s wrongdoing? Not as far as the police did in this example.

Consider another case; an employee travels abroad for a 2 week holiday, then becomes (allegedly) sick and doesn’t return for another 2 weeks. This is a pretty common scenario. In these circumstances it would perfectly ok to ask the employee for evidence, an original flight booking, medical certificates etc. But to contact the airline to establish the travel patterns, even if they’ll talk to you, must necessarily involve disclosing the employee’s details including their identity, and this would be overstepping the mark.

The lesson for employers therefore is that when investigating employees believed to be "swinging the lead" resist the temptation to contact third parties as to do so would be likely to breach data protection legislation and could prove very costly!

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